Fiction

The legal assumption that something which is or may be false is true. The expedient of fictions Is sometimes resorted to in law for the furtherance of Justice. Corkran Oil & Development Co. v. Arnaudet, 199 U. S. 194, 26 Sup. Ct. 41, 50 L. Ed. 143. The law-making power has no need to resort to fictions: it may establish its rules with simple reference to the truth; but the courts, which are confined to the administration of existing rules, and which lack the power to change those rules, even in hard cases, have frequently avoided the injustice that their application to the actual facts might cause, by assuming, in behalf of Justice, that the actual facts are different from what they really are. Thus, in English law, where the administration of criminal Justice is by prosecution at suit of the crown, the courts, rather than disregard the rules imder which all other parties stand in respect to their neglect to appear and prosecute their suits, adopt the fiction that the king is legally ubiquitous and always in court, so that he can never be non-suited. The employment of fictions is a singular illustration of the Justice of the common law, which did not hesitate to conceal or affect to conceal the fact, that a rule of law has undergone alteration, its letter remaining unchanged. Fiefio in the old Roman law was properly a term of pleading and signified a false averment on the part of the plaintiff which the defendant was not allowed to traverse; as that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of the fiction was to give the court Jurisfrom estoppels. A presumption Is a rule of law prescribed for the purpose of getting at a certain conclusion, though arbitrary, where the subject la intrinsically liable to doubt from the remoteness, discrepancy, or actual defect of proofs. Thus, an infant under the age of seven years is conclusively presumed to be without discretion. Proof that he had discretion the court will not listen to. In the nature of the subject, there must be a limit, which it is better should be a general though arbitrary one than be fluctuating and uncertain in each case. An estoppel, on the other hand, is the rule by which a person is precluded from asserting a fact by previous conduct inconsistent therewith on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to question. This distinction is thus expressed by a Scotch writer: A flctio juris differs from a presumption. Things are presumed which are likely to be true; but a Action of law assumes for truth what Is either false, or at least is as probably false as true. Thus, an heir is feigned or considered in law as the same person with his ancestor; thus,.also, writings against which certification is obtained in a reductlon-lmprobatlon are judged to be false fictione juris, though the most convincing proof shall be brought that they once existed and were genuine. Fictions of law must in all their effects be always limited to the special purpose of equity for which they were introduced. Brsk. Prln. 631. The familiar fictions of the civil law and of the earlier common law were very numerous; but the more useful of them have either been superseded by authorized changes in the law or have gradually grown as it were into distinct principles, forming exceptions or modifications of those principles to evade which they were at first contrived. As there is no just reason for resorting to Indirection to do that which might bo done directly, fictions are rapidly disappearing before the increasing harmony of our jurisprudence. See 4 Bcnth. Bv. 300; 2 Pothier, Obi., Evans’ od, 43. But they have doubtless been of great utility in conducing to the gradual amelioration of the law; and, in this view, fiction, equity, and legislation have been named together as the three instrumentalities in the improvement of the law. They have been employed historically in the order here given. Sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or the other of them. But there is no instance in which the order of their appearance has been changed or inverted. Maine, Anc. Law 24. Theoretical writers have classified fictions as of five sorts: abeyance, when the fee of land is supposed to exist for a time without any particular owner during an outstanding freehold estate; 2 Bla. Com. 107; 1 Cruise, Dig. 67; 1 Com. Dig. 176; 1 Viner, Abr. 104; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires, a defective title, is remitted to his former good title; that one thing done to-day is considered as done at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, or administrator stand by representation in place of the deceased. Again, they have been classified as of three kinds; positive, when a fact which does not exist Is assumed; negative, when a fact which does exist is ignored; and fictions by relae. g., that of a servant as the act of bis master; when an act at one time or place is treated as if performed at a different time or place; and when an act in relation to a certain thing is treated as if it were done in relation to another thing which the former represents, — e. g., where delivery of a portion of goods sold is treated as giving possession of the whole; Best, Pres. 27. Fictions bdng resorted to simply for the furtherance of Justice; Co. Litt. 160; 10 Co. 42; 1 Cowp. 177; several maxims are fundamental to them. First, that that which is impossible shall not be feigned; D’Aguesseau, (Euvres, tome Iv. pp. 427, 447 c, Plaidoyer; 2 Rolle 502. Second, that no fiction shall be allowed to work an injury; 3 Bla. Com. 43; Low v. Little, 17 Johns. (N. Y.) 348. Third, a fiction is not to be carried further than the reasons which introduced it necessarily require; 1 Lilly, Abr. 610; 2 Hawk. PI. Cr. 320; Best, Pres. § 20. Consult Dalloz, Diet.; Burg. Ins, 139; Ferguson, Moral Phil. pt. 6, c. 10, § 3; 1 Toullier 171, n. 203; 2 id. 217, n. 203; 11 id. 10, n. 2; Maine, Anc. Law; Benth. Jud. Ev.; 1 Poll. & Maitl. 469.

Anassumption or supposition of law that something which is or may be false is true, or that a state of facts exists which has never really taken place. H A fiction is arule ol law which assumes as true, and will not allow to be disproved, something which is false, but not impossible. Best, Ev. 419. These assumptions are of an innocent, or even beneficial character, and are made for the advanecment of the ends of justice. They secure this end chiefly by the extension of procedure from cases to which it is applicable to other cases to which it is not strictly applicable, the ground of inapplicability being some differenca of an immaterial character, Brown. Fictions are to be distinguished from presumptions of law. By the former, something known to be false or unreal is assumed as true; by the latter, an inference is set up, whieh may beand probably is true, but which, at any rate, the lew will not permit to be controverted, Mr. Best distinguishes legal fictions from presumptions juris ef de jure, apd divides them into three kinds,—affirmative or positive fictions, nsgative fictions, and fictions by relation. Best, Pres. p. 27, § 24. opinion of the court on a point of law, not for the settlement of any actual controversy between the parties. Courts of justice were constituted for the pur. pose of deciding really existing questions of right between parties; and they are not bound to answer impertinent questions which porsons think proper to ask them in the form of an.action on a wager. 12 Hast, 248..

3 That which is feigned, assumed, pretended. The legal assumption that something is true which is or may be false; an assumption of an innocent and beneficial character, made to advance the ends of justice. Compare Estoppel; Presumption. An allegation in legal proceedings that does not accord with the actual facts; and which may therefore be contradicted for every purpose except to defeat the beneficial end for which the fiction is allowed. < Fictions of law are highly beneficial and useful; especially as "no fiction extends to work an injury:" the proper operation being to prevent mischief or remedy an inconvenience that might result from a general rule. The maxim is, in fictione juris semper subsistit cequitas — in a fiction of law equity always subsists; a legal fiction is consistent with justice.' But not admitted, where life, liberty, or personal safety is in jeopardy.' Illustrative examples: that the Idng was the original proprietor of all lands.' That an original capias had been granted, when a testatum capias issued into 1 2 Bl. Com. 91; 44 Pa. 498. 2 Chamber's Encyclopedia. = L. fictio: fingcre, to invent. 1 [Strafford Bank v. Cornell, 3 N. H. 387 (1881). » 3 Bl. Com. 4.3, 383. See Best, Presump., 87; 2 Burr, *962. another coiznty.^ That a summons issues in an amicable action. That a person bailed is in the custody of his bail. That a> feigned issue is based upon k wager made.' That what ought to be done is done, and relates back to the time when it was to be done.^ The doctrine of abeyance. 2 That a term of court consists of a single day.* That a writ of error actually removes the record, instead of a transcript of the record, 1 That every person knows what is passing in the courts. ' That the possession of one who has a right of lien is the possession of the law.' That the law takes no notice of a, fraction of a day.^ The doctrine of equitable conversion." The doctrine of representation in an agent, and in a decedent; and some features of the early action of ejectment. Fiction makes several corporations out of what is really one, in order to give each State control over the charters it grants. ' " SHctio, in old Roman law, is proper-ly a term of pleading, and signifies a false averment which the defendant was not.allowed to traverse; as, that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object was to give jurisdiction... Legal fiction may be used to signify an assumption which conceals, or aifects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged while its operation is modified. The " fact " is that the law has been wholly changed; the "fiction " is that it remains what it always was... Fictions are particularly congenial to the infancy of society. They satisfy the desire for improvement, while they do not offend the disrelish for change. Thus they become invaluable expedients for overcoming the rigidity of law.'' Fictitious. 1. Not real; feigned: as, a fictitious — action, case, issue, name, party, payee. A fictitious case is a suit brought upon facts with respect to which no real controversy exists. Any attempt, by a mere colorable dispute, or where the appellant has become the sole party in interest, to get up a case for the opinion of the court, where there is no real and substantial controversy, is an abuse reprehended by all courts, and punishable as a contempt, i' 2. Imaginary; unsubstantial: as, fictitious bail, q. v. 3. Not made in good faith: as, a fictitious bid, q. V. 1 3 Bl. Com. 283. 2 3B1. Com. 433. a 2 BI. Com. 107. ' Newhall v. Sanger, 92 U. S." 766 (1876). s Hunnicutt v. Peyton, 108 U. S. 356 (1880). » 3 Pars. Contr. 282. ' 3 Pars. Contr. 234. a 3 Pars, Contr. 504 (g). ' 1 Pars. Contr. 134. i» Home V. Boston, &c. B. Co., 18 F. B. 60 (1883), " Maine, Ancient Law, 24-25. 12 Lord V. Veazie, 8 How. 255 (1860), Taney, C. J;